NOTICE
*************************************************************************
NOTICE
*************************************************************************
This document was originally prepared in Word Perfect.
If the original document contained--
* Footnotes
* Boldface & Italics
--this information is missing in this version
The document format (spacing, margins, tabs, etc.) is changed too.
If you need the complete document, download the Word Perfect version.
For information about downloading documents (FTP) see file pnmc5021.
File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous.
*************************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Interactive Video and Data Service )
(IVDS) Licenses )
)
Requests by Lottery Winners to )
Extend Construction Deadline )
MEMORANDUM OPINION AND ORDER
Adopted: July 29, 1996 Released: August 15, 1996
By the Commission:
1. Introduction and Executive Summary. On March 13, 1995, the Wireless
Telecommunications Bureau (Bureau) released an Order waiving the one-year construction
"build-out" requirement of Section 95.833(a) of the Commission's rules for six Interactive Video
and Data Service (IVDS) licensees. Pursuant to Section 1.3 of the Commission's Rules, 47
C.F.R. 1.3, a waiver of the subject rule is appropriate "only if special circumstances warrant
a deviation from the general rule and such deviation will serve the public interest." The Bureau
determined that the standard for waiver was met due to the uncertainty regarding the continued
validity of the licenses at the time when the requirement was to be met by the IVDS licensees.
Edward M. Johnson (Johnson) filed an Application for Review of the Order, to which licensees
Cristina Del Valle (Del Valle) and Luz Lobaton (Lobaton) filed Oppositions. By this
Memorandum Opinion and Order, we deny the Application for Review and affirm the Order,
finding that Johnson has failed to show that the waiver grants should not be upheld.
2. Background. When the IVDS licensees filed the waiver requests which were the
subject of the Order, Section 95.833(a) of the Commission's Rules required system licensees to
make service available to at least 10 percent of the service area population or geographic service
area within one year of the grant of the license, 30 percent within three years, and 50 percent
within five years. The licensees argued that the waiver requests were justified due to uncertainty
regarding the continued validity of their licenses. The licensees noted that a court case
challenging the lottery process used to award their licenses had only recently been dismissed, and
that pending Applications for Review before the Commission made similar challenges. They
argued that, in light of such uncertainty, they were justified in not making binding decisions
concerning financing, equipment purchasing, and construction. The Bureau agreed, noting that
Section 95.833(a) was intended "to reduce the filing of speculative applications by entities that
have no real intention of implementing [IVDS] systems and to avoid the potential for
warehousing of IVDS spectrum." The Bureau granted the waiver requests, stating:
There has been no evidence presented of speculation or
warehousing, and we find it would be unreasonable to require the
petitioners to meet the current build-out requirements, given the
uncertainty that exists concerning their licenses. Moreover, we find
that waiving the one-year construction deadline will not result in
delays in service to the public because these licensees will still be
required to satisfy the three-year and five-year construction
benchmarks. Moreover, we believe that providing licensees with
additional flexibility in satisfying the construction benchmarks is
desirable and consistent with our intent to allow for more flexible
use of the spectrum.
Johnson opposed the waiver requests by challenging the underlying authorizations, arguing that
the lottery procedure was flawed and that granting the licenses was improper. The Bureau
considered this argument inapposite, noting that Johnson had failed to address "the specific basis
for relief cited by [the licensees]." The Bureau added that Johnson, when specifically referring
to the waiver requests, "only state[d] broadly that such waivers would undermine the integrity
of the general rule."
3. In his Application for Review, Johnson states as his entire argument:
Each argument made [in the previous Opposition] is incorporated
in this Application for Review. The staff in error has found
"special circumstances" to modify absent formal rulemaking
conditions on eleven licenses [sic]. . . . The licensees as parties
seeking a waiver of a Commission regulation, must show that
application of the rule to its particular facts would not be in the
public interest and granting the waiver would not undermine the
policy served by the rule. . . . The applicants have failed to meet
this burden. The Commission, in the rulemaking proceeding,
already concluded that the public interest required a timely building
of the facilities.
4. Discussion. We find that, pursuant to 47 C.F.R. 1.3, the Bureau has articulated
special circumstances and good cause to support the requested limited waivers of Section
95.833(a). As before, Johnson asserts that the waiver standard has not been met, but does not
apply the standard for granting waivers to the facts of this case. Nor does Johnson support his
view that granting the waivers was contrary to the policies that underlay the adoption of the
subject rule. We find that, in light of the uncertainty described, the newness of the service, and
the limited nature of the waiver, the Bureau's decision to waive compliance with the one-year
construction requirement of Section 95.833(a) served the public interest and did not undermine
that rule's underlying policies. Requiring construction under the schedule prescribed by Section
95.833(a) could have harmed the licensees unnecessarily, given these factors. By continuing to
require adherence to the three-year and five-year construction benchmarks, the Bureau ensured
that the long-range expectations of service to the public would be met and that this limited relief
to these licensees would not encourage speculative filings or precipitate unwarranted requests to
delay construction. Finally, to the extent Johnson suggests that the Bureau improperly waived
the build-out requirement without a rulemaking proceeding, we note that a waiver granted in
limited circumstances (as was done here) assumes the validity of the general rule and, as such,
does not constitute a rule change requiring such a proceeding.
5. Accordingly, IT IS ORDERED that the Application for Review filed by
Edward M. Johnson IS DENIED.
FEDERAL COMMUNICATIONS COMMISSION
William F. Caton
Acting Secretary